TMI Tax Updates - e-Newsletter
July 25, 2023

Case Laws in this Newsletter:

GST Income Tax Customs Insolvency & Bankruptcy PMLA Service Tax Central Excise

Articles

1. No Service tax on incentives received by travel agents from airlines or CRS companies

   By: Bimal jain

2. GST Implications on Various Travel-Related Services by AgentGST Implications on Various Travel-Related Services by AgentGST Implications on Various Travel-Related Services by AgentGST Implications on Various Travel-Related Services by AgentGST Implications on Various Travel-Related Services by Agen

   By: Estartup India

3. RESOLUTION PROFESSIONAL IS EMPOWERED TO KEEP CLAIMS IN ABEYANCE

   By: DR.MARIAPPAN GOVINDARAJAN

4. The CBIC Officers entrusted with larger Roles – More Flying squads to check warehouse, vehicles, restaurants, etc to support Election Commission

   By: Vivek Jalan

5. Department cannot invoke extended period without proving suppression of fact

   By: Bimal jain

News

1. Advisory: e-Invoice Exemption Declaration Functionality Now Available

2. Joint outcome statement: UK-India round eleven FTA negotiations

3. Revenue saved through Direct Benefit Transfer (DBT) subsidy schemes

4. Banks get ₹5,729 crore from “Depositor Education and Awareness” (DEA) Fund towards refund of settling unclaimed deposits

Notifications

Customs

1. 55/2023 - dated 21-7-2023 - Cus (NT)

Inland Container Depots for loading and unloading of goods - entries for Maharashtra omitted - Seeks to amend Notification No. 12/97-Customs (NT) dated the 2nd April, 1997

Circulars / Instructions / Orders

GST - States

1. Trade Circular 12 T of 2023 - dated 21-7-2023

Clarification on charging of interest under section 50(3) of the MGST Act, 2017, in cases of wrong availment of IGST credit and reversal thereof.

2. 144/2023-GST - dated 21-7-2023

Clarification regarding taxability of services provided by an office of an organisation in one State to the office of that organisation in another State, both being distinct persons.

3. 142/2023-GST - dated 21-7-2023

Clarification on refund related issues

4. 139/2023-GST - dated 21-7-2023

Clarification on TCS liability under Sec 52 of the Assam GST Act, 2017 in case of multiple E-commerce Operators in one transaction.

5. 143/2023-GST - dated 21-7-2023

Clarification on issue pertaining to e-invoice.

6. 141/2023-GST - dated 21-7-2023

Clarification on taxability of shares held in a subsidiary company by the holding company.

Highlights / Catch Notes

GST

• High Court Orders IGST Refund for Excess Payment at 18% Instead of 0.1% as per Notification No. 41/2017.

  Case-Laws - HC : Refund of excess IGST paid - Payment of IGST @18% instead of 0.1% erroneously - petitioner mainly contended that the respondents have committed an error in denying the benefit of concessional rate of duty - notification No. 41 of 2017-IGST (Rate) - The conditions mentioned in the aforesaid notification clearly envisages that all the conditions are not to be fulfilled or complied with by the petitioner but the conditions are to be complied with by the exporter - Refund directed to be allowed - HC
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• Court Orders GST Department to Approve Refund Claim Despite Technical Error in ITC Application for Zero-Rated Supplies.

  Case-Laws - HC : Refund claim of unutilized ITC used in making zero-rated supply of goods - Technical error / arithmetical error committed by the employee - It is settled law that the benefit which otherwise a person is entitled to once the substantive conditions are satisfied cannot be denied due to a technical error or lacunae in the electronic system - GST department directed to allow the refund - HC
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• Court Allows Refund Claims for IGST and Duty Drawback; No Restrictions Under CGST Act Section 64 and Customs Act Sections 74/75.

  Case-Laws - HC : Refund claim - Duty Drawback - export as zero rated supply - at present there is no embargo for processing the Refund claims and Duty Drawback claims filed by the petitioner for refund of IGST filed under Section 64 of the CGST, Act, 2017 and a Duty Drawback u/s 74/75 of the Customs Act, 1962. - Directions issued for processing refund - HC
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Income Tax

• ITAT Denies Assessee's Attempt to Reclassify Bad Debts as Business Expenditure u/s 37(1); Additions Confirmed.

  Case-Laws - AT : Write off of outstanding dues - Bad debts claimed u/s 36(1)(vii) - Fresh claim before ITAT, in alternative, as business expenditure u/s 37(1) - The assessee at this stage cannot seek relief to allow the claim u/s 37 of the Act merely because some relief has been given by Ld. CIT(A) in regard to other addition. - Additions confirmed - AT
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• Book Profits Increased by Losses on Investments u/s 115JB; Capital Receipts Exclusion Confirmed as Gains.

  Case-Laws - AT : MAT - determination of Book-Profits u/s 115JB vis-à-vis loss suffered by the assessee on loss on investments - when gains on sale of investments were to be excluded being capital receipts, naturally, the book profits are to be increased by similar losses incurred on sale of investments - Additions confirmed - AT
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• Assessment Reopening u/s 147 Deemed Erroneous; Jurisdiction Improperly Invoked by Assessing Officer, Addition Unsustainable.

  Case-Laws - AT : Reopening of assessment u/s 147 - undisclosed revenue receipt - Ld. AO had fallen in error in invoking the jurisdiction u/s 147/148 of the Act and otherwise the addition is not sustainable too in the relevant AY. - AT
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• Section 68 Loan Additions Deleted: Genuine Transactions Verified Through Banking Channels and Lender's Accounts.

  Case-Laws - AT : Addition u/s 68 - unsecured loans - The loan transactions are routed through regular banking channels and reflected duly in the annual accounts of the lender company. Hence the genuineness of the transactions is also proved beyond doubt. All the three necessary ingredients of section 68 of the Act has been proved in respect of this loan transaction. - Additions deleted - AT
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• Assessing Officer to Consider 50% of Demonetization Cash Deposits as Business Receipts u/s 69A for Car Hire Business.

  Case-Laws - AT : Addition u/s 69A - cash deposits during demonetization period - business of hiring of cars - A reasonable amount of cash deposits during demonetization period is out of business receipts, cannot be ruled out - AO directed to to treat 50% of cash deposits during demonetization period is out of business receipts of the assessee and balance 50% cash deposits is unexplained. - AT
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• Supreme Court Confirms IBC Supremacy Over Income-tax Act in Corporate Insolvency Cases u/s 238 of IBC.

  Case-Laws - AT : Recovery of income tax dues - Assessee Company under CIRP processings - Supremacy of IBC over all other Central and State statutes including Income-tax Act - Apex court has held that, Given section 238 of the Insolvency and Bankruptcy Code, 2016, it is obvious that the Code will override anything inconsistent contained in any other enactment, including the Income-tax Act. - AT
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Customs

• Anti-Dumping Duty Levy Period Excludes Interim Order Duration; 2021 Notification Upheld Despite Timing Issues per Rule 18.

  Case-Laws - HC : Levy of Anti-Dumping Duty (ADD) - timeframe prescribed under Rule 18 of the ADD Rules - The Tribunal was right in concluding that the time for which the interim orders were operable had to be excluded. The Tribunal was also right in concluding that given the fact that representations had to be considered, as directed by the High Court, it could not be said that the notification dated 05.04.2021 was void in law, as it was not issued within the timeframe provided in Rule 18 of the ADD Rules. - HC
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Service Tax

• Small Operator Qualifies for Section 80 Benefits After Paying Service Tax, Interest, and 25% Penalty Due to Compliance Efforts.

  Case-Laws - AT : Levy of penalty at reduced rate - the appellant being a small operator had no wherewithal to keep track of the law and thus, the applicability of the Service Tax to him - Looking into the conduct of the appellants in depositing the tax with interest and 25% penalty the provisions of Section 80 are invited and the benefits of Section 80 can be extended to the appellants. - AT
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• Court Rules Demand Against Service Provider Unfeasible Due to Full Tax Payment Under Reverse Charge Mechanism.

  Case-Laws - AT : Discharge of Service tax liability - manpower recruitment or supply agency service - reverse charge mechanism - In this view of the matter, when the entire tax due has been deposited in the account of the Central Government though not entirely by the appellant as a service provider but also by the service recipients, it will not be possible to sustain the demand - AT
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Central Excise

• Tribunal to Reconsider Valuation Method for Duty Liability on Medicines u/ss 4 and 4A of Central Excise Act.

  Case-Laws - SC : Method of Valuation - Manufacture - Packing / Repacking of goods and re-labeling - Receipt of the medicines duly duty paid from the manufacturers in a packed form mentioning therein the retail price - it is alleged that Tribunal have not considered the issue of legality or otherwise of the duty liability u/s 4 and have considered the duty liability only u/s 4A - Matter restored back - SC
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Case Laws:

• GST

• 2023 (7) TMI 939
  Refund of excess IGST paid - Payment of IGST @18% instead of 0.1% erroneously - petitioner mainly contended that the respondents have committed an error in denying the benefit of concessional rate of duty as provided under notification No. 41 of 2017 Integrated Tax (Rate) on the inter-State supply of taxable goods - HELD THAT:- The duty is cast upon the registered recipient to export the goods within a period of 90 days from the date of issue of tax invoice by the registered supplier - In the present case, the petitioner has placed on record the invoice which is of 30.6.2019 and thereafter the buyer i.e. Quality Biz Chem India Pvt. Ltd., Mumbai has exported the goods under shipping bill dated 6.7.2019 - The conditions mentioned in the aforesaid notification clearly envisages that all the conditions are not to be fulfilled or complied with by the petitioner but the conditions are to be complied with by the exporter. The petitioner uploaded the refund claim on 12.3.2021 however, the respondent on a technical ground did not grant the refund and passed the impugned order dated 22.6.2021. The Hon ble Apex Court in M/S BONANZA ENGINEERING CHEMICAL PVT LTD VERSUS COMMISSIONER OF CENTRAL EXCISE [ 2012 (3) TMI 69 - SUPREME COURT ] has taken a view that merely because by mistake, the assessee paid duties on the goods which are exempted from payment does not mean that the goods would become goods liable for the duty under the Act. The order dated 22.6.2021 passed by the respondents is hereby quashed and set aside and the respondents are directed to refund the amount of 23,09,100/- with interest applicable as per law within reasonable time from the date of receipt of copy of this judgment - petition allowed.

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• 2023 (7) TMI 938
  Refund claim of unutilized ITC used in making zero-rated supply of goods - Technical error - It is the case of the petitioner that while showing the category of refund application, the petitioner has shown any other as the category because refund applications for these 11 months had already been made under Clause 7(c) - HELD THAT:- As the petitioner already filed refund application under Clause 7(c) i.e. accumulated ITC category at first point of time, for the same month and same period, another/supplementary application for the refund of the differential amount of refund (not claimed by the petitioner on account of arithmetical error on the part of the petitioner) cannot be filed on the portal and therefore there was no option for the petitioner to submit the application under the category any other . Thus, this is nothing but technical error and for such technical error, the claim of the petitioner cannot be rejected without examining the same by the respondent authority on its own merits and in accordance with law. Reference made to the decision rendered by the Hon ble Supreme Court in the case of UNION OF INDIA ORS. VERSUS VKC FOOTSTEPS INDIA PVT LTD. [ 2021 (9) TMI 626 - SUPREME COURT ], wherein the Hon ble Supreme Court has an occasion to deal with the issue where the High Court has expanded the provision for refund beyond what the legislature has provided, and therefore, the aforesaid decision would not render any assistance to learned AGP in the facts of the present case. It is settled law that the benefit which otherwise a person is entitled to once the substantive conditions are satisfied cannot be denied due to a technical error or lacunae in the electronic system - the petitioner has no option but to upload the supplementary application under any other category for the refund of the left out amount, which was due to an arithmetical error committed by the employee of the petitioner - the said claim of the petitioner for refund of the left out amount of Rs. 10,20,28,733/- cannot be rejected outright merely on technicality and that too when the substantive conditions are satisfied without scrutiny by the respondent in accordance with law. Thus, the petition deserves to be allowed - the respondents are directed to allow the petitioner to furnish manually the refund applications for refund of the left out amount of Rs. 10,20,28,733/- - Petition allowed.

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• 2023 (7) TMI 937
  Refund claim - Duty Drawback - raw material used in the manufacture of utensils exported by treating export as zero rated supply within the meaning of Section 16 of the IGST Act, 2017 - HELD THAT:- The present Writ Petition is disposed by directing the fourth respondent to process the Refund claims as also the Duty Drawback claim of the petitioner as expeditiously as possible within a period of three (3) months from the date of receipt of a copy of this order.

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• Income Tax

• 2023 (7) TMI 936
  Maintainability of appeal against HC - Low tax effect - Addition of Bogus LTCG - Addition deleted by the CIT (Appeals) also upheld by ITAT - HC confirmed ITAT order concluding no substantial question of law is involved - HELD THAT:- As the petitioners very fairly submits that apart from there being a delay of 193 days in filing the special leave petition, the tax effect is made only Rs.1,75,000/-. His submission is placed on record. Hence, the special leave petition stands dismissed.

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• 2023 (7) TMI 935
  TP Adjustment - comparable selection - HC [ 2021 (1) TMI 537 - DELHI HIGH COURT] held in the absence of segmental information provided by the companies in respect of the software services, comparables be deselected - HELD THAT:- This Court is not inclined to interfere with the impugned judgment and order of the High Court. The special leave petition is dismissed.

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• 2023 (7) TMI 934
  Reassessment proceeding on error in the return filed concerning tax deducted at source, [i.e., in Form 26Q] - HELD THAT:- As petitioner, submits that the revised Form 26AS, which was downloaded by the petitioner on 24.04.2023, discloses that the error has been corrected. Resultantly, no withholding tax in relation to the subject transaction is reflected in the revised Form 26AS, which concerns the petitioner. Given the aforesaid position, revenue cannot but accept, that the prayers made in the writ petition would have to be allowed.The impugned orders and notices are set aside.

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• 2023 (7) TMI 933
  Write off of outstanding dues - Bad debts claimed u/s 36(1)(vii) - Fresh claim before ITAT, in alternative, as business expenditure u/s 37(1) - as per AO Advance payment cannot be claimed as bad debts u/s 36(1)(vii) because the said advance was not included as income of the appellant in any of the previous years - HELD THAT:- Here is no doubt that within the provisions of Section 36(1)(vii) of the Act the deduction was not allowable. A perusal of the submissions of assessee before CIT(A) and the grounds raised in the first appeal before CIT(A) show that assessee had not made any specific claim that instead of provisions of Section 36(1)(vii) of the Act, Ld. AO should have invoked Section 37 and allowed the write off as an expenditure. There is no material on record to show as to what was the nature of agreement or transaction entered into and how though services which were sought were related to the purpose of business of assessee. In fact as the advances were paid in the year 2010-11 then in the relevant previous year 2014-15, the recovery of amount for non-provision of service, would also become time barred and which also needed the examination on facts. The assessee at this stage cannot seek relief to allow the claim u/s 37 of the Act merely because some relief has been given by Ld. CIT(A) in regard to other addition. Thus, ground no. 1 is decided against the assessee. Write off of the outstanding due balance of Hughes Communications Ltd - HELD THAT:- Tax Authorities have failed to appreciate that the amount was in fact not an advance but was received mistakenly and which under a Court decree had to be returned with interest. If interest was allowable u/s 37 of the Act, then the principal amount returned by virtue of order of the Court was also allowable, as both formed the composite money decree. Accordingly, the findings of Ld. CIT(A) in regard to ground no.2 are not sustainable, the same is allowed. The Ld. AO shall allow the whole of the amount as allowable deduction u/s 37 of the Act. Consequently, the appeal of assessee is allowed partly.

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• 2023 (7) TMI 932
  Estimation of income - Bogus expenses - contract receipts - assessee actually carried out the contract work of this magnitude but recorded bogus bills towards sub-contract expenses for reducing the amount of profit, instead of actual lower expenses - HELD THAT:- On disallowing the bogus expenses, the actual estimated expenses need to be reduced from the amount of revenue receipts for computing the income. In our considered opinion, the ld. CIT(A) was more than considerate in estimating the profit at 12% on such contract receipts as against the assessee s normal profit rate from genuine business at 6.51%. The contention of the Department that the full amount, as added by the AO ought to have been upheld, is without merit because it is only the profit element in the contract receipts which can be subjected to tax. The Hon ble Bombay High Court in Pr. CIT Vs. S.V. Jiwani [ 2022 (10) TMI 173 - BOMBAY HIGH COURT] has also held to this extent. We, therefore, countenance the view canvassed by the ld. CIT(A).

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• 2023 (7) TMI 931
  MAT - determination of Book-Profits u/s 115JB vis- -vis loss suffered by the assessee on loss on investments - HELD THAT:- As capital profits, which do not have component of income, are to be excluded while computing Book Profits u/s 115JB. On similar logic, the adjustment of loss could also not be allowed u/s 115JB. In other words, loss on sale of investment could not be reduced from Book Profits u/s 115JB. As in CIT V/s Metal and Chromium Plater (P.) Ltd . [ 2016 (11) TMI 1021 - MADRAS HIGH COURT] clearly held that in terms of provisions of sub-section (5) of Sec.115JB, the assessment was open for application of all other provisions contained in the Income tax Act except if specifically barred by that section itself. Therefore, when gains on sale of investments were to be excluded being capital receipts, naturally, the book profits are to be increased by similar losses incurred on sale of investments. Decided against assessee.

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• 2023 (7) TMI 930
  Reopening of assessment u/s 147 - undisclosed revenue receipt - assessee has not recognized the income in respect of receipt from from M/s Indu Project Limited which assessee had claimed was received against the work order - claim of assessee is that the payments which were made to M/s. Dingle Buildcon Pvt. Ltd. was part of execution of work order received from M/s Indu Project Ltd - HELD THAT:- Assessee claims that in the year under consideration no expenditure on account of job charges has been claimed and job charges have been taken is work in progress. As this fact is not disputed by the Revenue, in the present assessment year 2010-11 any disallowance u/s 37(1) of the Act is not justified and so does the reopening of assessment when the additions made for sum received from M/s Indu Project Ltd, has also not been allowed to be added in the year under consideration by the Tribunal, while upholding the deletion of addition made on that account by the Ld. AO. Even otherwise, the material on record suggests that Tax Authorities have heavily relied the statements of Shri Anil Aggarwal who is an alleged Entry Operator controlling the four tainted entities. The Statements are part of the assessment order itself and Ld. Counsel in the presence of ld. DR was able to canvass that in none of the statements no specific statement is made by these persons qua the assessee which may indicate that they were involved in showing bogus job work towards assessee. - There was no direct transaction of the assessee with the four tainted companies operated by Shri Anil Aggarwal. It can be appreciated that primarily on the basis of statements alone and no other corroborative evidence the Ld. AO has drawn the inferences without giving assessee an opportunity to cross examine the said persons, - In assessment order Ld. AO mentions notices issued to these four tainted companies were received unserved, then the onus was on the Ld. AO to have certainly give opportunity to cross examine Shri Anil Aggarwal, who was allegedly operating these tainted companies. The Bench is of considered view that AO had fallen in error in invoking the jurisdiction u/s 147/148 of the Act and otherwise the addition is not sustainable too - Decided in favour of assessee.

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• 2023 (7) TMI 929
  Loss on sale of finance receivables - CIT-A deleted the addition - HELD THAT:- As respectfully following the ratio laid down by the Co-ordinate Bench in the case of GE India G.E. Money Finance [ 2016 (8) TMI 1202 - ITAT DELHI] as held such transaction are in normal course of business of NBFCs, it may be noted that such loss is incidental to the business of the Appellant and fulfills all the conditions laid down by section 28 of the IT Act for allowability of loss and supported by various judicial precedents. Thus we find no error or infirmity in the order of the CIT(A) and find no merit in the grounds of Appeal of the Revenue - Decided in favour of assessee.

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• 2023 (7) TMI 928
  Addition u/s 68 - unsecured loans appearing in the books of the assessee treated as unexplained cash credit - assessee company is a sick industrial company and registered with erstwhile BIFR under sick industrial company (Special Provisions) Act, 1985 for rehabilitation since its net worth turned negative and fully eroded in year 1991 - HELD THAT:- As lender company has got free reserves which itself proves the creditworthiness to make interest free advances to the assessee company. All the transactions are routed through regular banking channels and duly reflected in the balance sheet of the lender company and duly supported by a confirmation from lender company. Hence, the identity, creditworthiness of the lender and genuineness of the transaction are prove beyond doubt. The loan transactions are routed through regular banking channels and reflected duly in the annual accounts of the lender company. Hence the genuineness of the transactions is also proved beyond doubt. All the three necessary ingredients of section 68 of the Act has been proved in respect of this loan transaction. Decided in favour of assessee.

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• 2023 (7) TMI 927
  Amortization of variable licence fee - addition u/s 35ABB or Allowable revenue expenditure u/s 37(1) or not? - AO show caused the assessee as to why this amount should not be amortized over the remaining period of licence in case of each circle u/s 35ABB of the Act instead of allowing it as revenue expenditure - CIT(A) deleted the same and allowed the expenditure as revenue expenditure by following the decision of Hon ble Jurisdictional High Court in assessee s own case. [ 2013 (12) TMI 1115 - DELHI HIGH COURT] - HELD THAT:- We find that since the relief has been granted by the Ld. CIT(A) by following the decision of Hon ble Jurisdicitonal High Court in assessee s own case on the impugned issue, we do not find any infirmity in the order of the Ld. CIT(A). Decided against revenue. Disallowance towards Subscriber Verification Penalty u/s 37(1) - violation of KYC norms - assessee is supposed to follow the Know Your Customer (KYC) norms stipulated by DOT and when there is deficiency in adhering to aforesaid KYC norms, the DOT Enforcement, Resources and Monitoring Cell, after audit of the company, levies penalty on the assessee - HELD THAT:- We find that this issue is already settled in favour of the assessee by decision of this Tribunal in assessee s own case for AY 2015-16 [ 2023 (7) TMI 232 - ITAT DELHI] held that payment made towards penalty for violation of KYC norms would not fall within the ambit of Explanation 1 to section 37(1) of the Act. Decided in favour of assessee. TDS u/s 194H - Disallowance of expenditure u/s 40(a)(ia) - assessee sells the pre-paid SIM Card with available talk time worth Rs. 100/- at a discounted price of Rs 70 to the distributors - HELD THAT:- As decided in assessment year 2015-16 own case [ 2023 (7) TMI 232 - ITAT DELHI] provisions of section 194H are not attracted to the discounts given to distributors. Hence, section 40(a)(a) would not be applicable. Decided in favour of assessee.

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• 2023 (7) TMI 926
  Addition u/s 69A - cash deposits during demonetization period - HELD THAT:- Assessee could not file necessary analysis of receipts from business including cash receipts and bank receipts during demonetization period and corresponding previous period. In absence of any details with regard to nature and source of cash receipts, the arguments of the assessee that said cash deposits is out of business receipts, cannot be accepted in total. Therefore assessee is in the business of hiring of cars and also fact that the main source of receipts for the assessee is cash, a reasonable amount of cash deposits during demonetization period is out of business receipts, cannot be ruled out. Since, there are no details with regard to exact amount of cash receipts during demonetization period, the only way forward is to estimate receipts from business. Thus, we direct the AO to treat 50% of cash deposits during demonetization period is out of business receipts of the assessee and balance 50% cash deposits is unexplained. Decided partly in favour of assessee.

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• 2023 (7) TMI 925
  Recovery of income tax dues - Assesee Company under CIRP processings - Supremacy of IBC over all other Central and State statutes including Income-tax Act - HELD THAT:- Hon ble Supreme Court in case of PCIT vs. Monnet Ispat and Energy Ltd. [ 2018 (8) TMI 1775 - SC ORDER] held as Given section 238 of the Insolvency and Bankruptcy Code, 2016, it is obvious that the Code will override anything inconsistent contained in any other enactment, including the Income-tax Act. Thus section 238 of the Code will have overriding effect over all other Central and State statutes including the Income-tax Act and all the claims including claim of the Income-tax Department under the Income-tax Act, 1961 shall be entertained by the Official Liquidator u/s 53 (1) of the Code. Keeping in view all these facts, ld. AR for the assessee stated at Bar that he does not press these appeals and same may be dismissed as withdrawn.

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• Customs

• 2023 (7) TMI 924
  Levy of Anti-Dumping Duty (ADD) - Seeking stay of the operation of the customs notification dated 05.04.2021 - Import of Flexible Slabstock Polyol (FSP) originating from Saudi Arabia and United Arab Emirates (UAE) - whether the notification dated 05.04.2021 issued by UOI was void in law, as it was issued after the timeframe prescribed under Rule 18 of the ADD Rules had been crossed? HELD THAT:- The ADD Rules empower UOI/Central Government to appoint a person, not below the rank of a Joint Secretary to the Government of India or such other person which it thinks is fit to act as the DA and notify such appointment via the official gazette. The UOI/Central Government is also empowered to provide the DA, the services of such other persons and other facilities as it deems fit - the broad scheme of the ADD Rules is to give leeway to UOI to arrive at its own decision i.e., whether or not to accept the recommendation of the DA with regard to the amount of ADD, which, if levied, would remove the injury where applicable caused to the domestic industry. [Rule 17(1)(b) of the ADD Rules.] The moot point is that the ADD Rules, which are a delegated legislation framed by UOI/Central Government under the powers given to it by the Legislature under the above-referred provisions of the CTA, failed to envisage a scenario where a party, dissatisfied with the final findings returned by the DA could approach a Court and obtain an order that could disrupt the timelines provided in the said Rules. Keeping the underlying purpose in mind, it would not be out of place to read into Rule 18, the requirement to extend the timeframe given therein, for UOI/Central Government to decide on the recommendation made by the DA by excluding the period for which orders of the Court remained operable. This would, in our view, not amount to supplanting the Rule, but would, on the other hand, balance the interests of both the exporter of the subject article which is under investigation as well as the domestic industry. Any other view would tantamount to punishing the party which adhered to the orders of the Court. There are statutes which expressly provide for the exclusion of timeframes provided in the statute for completion of certain acts, on account of order(s) issued by a court. One such example is the provisions of Section 11A of the Land Acquisition Act, 1894 - The fact that there is no such provision, in our opinion, should not deter a court from applying the principle that no litigant/party can be made to suffer on account of order(s) or acts of the court, which require peremptory adherence. The judgment of the Supreme Court rendered in the J.K. Industries case [ 2005 (4) TMI 94 - SUPREME COURT ], is clearly distinguishable, as the observations made therein have to be understood in the context in which they were made. This was a case where a notification for the levy of provisional ADD was issued, which had come to an end due to efflux of time. The levy of provisional duty and other proceedings were challenged before the concerned High Court. The Tribunal was right in concluding that the time for which the interim orders were operable had to be excluded. The Tribunal was also right in concluding that given the fact that representations had to be considered, as directed by the High Court, it could not be said that the notification dated 05.04.2021 was void in law, as it was not issued within the timeframe provided in Rule 18 of the ADD Rules. The impugned order need not be interfered with - appeal dismissed.

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• 2023 (7) TMI 923
  Applicability of laboratory reports of Geo Chem Laboratories Pvt. Ltd. - Food Safety and Standards Authority of India - HELD THAT:- It clearly appears from Affidavit that Genetic Engineer Appraisal Committee (GEAC) has nowhere come to any final conclusion in regard to the clearance of these goods on the parameters being followed by it under para 6 of ITC (HS), 2017, Schedule 1 Import Policy, (General Notes regarding Import Policy), as set out in para 5 of its Affidavit. The GEAC is dependent on the test which would be undertaken by the FSSAI. Petitioner has stated that already the FSSAI has granted a certificate to that effect, however, we would desire that in terms of what we have observed specific approval and statement to that effect needs to come on affidavit on behalf of FSSAI-Respondent No. 7. If FSSAI files such affidavit, it is opined, the Customs who is also dependent on such authorities like the FSSAI who are supposed to be the custodians on food safety and standards who would be seriously concerned for such goods/items before they are put to human consumption. List the matter on 25th July 2023, High on Board.

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• Insolvency & Bankruptcy

• 2023 (7) TMI 922
  Initiation of CIRP - appellant ready and willing to pay the debt - Operational Creditors - HELD THAT:- It is pointed out that the flat buyers have filed a petition under Section 7 of the Insolvency and Bankruptcy Code, 2016, which proceedings are pending before the National Company Law Tribunal (NCLT), Chandigarh Bench, Chandigarh. Appeal dismissed - it is left open to the appellant Tejinder Pal Setia to move an appropriate application before the NCLT, expressing his desire to liquidate and pay off the debt due to operational creditor/respondent no. 1 - M/s. Kone Elevator India Pvt. Ltd., which stands assigned to the respondent no. 3 - Sanjeev Chadha.

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• PMLA

• 2023 (7) TMI 921
  Seeking grant of bail - respondent is a flight risk - HELD THAT:- Impugned order need not be interfered with. Revenue would point out that the conditions imposed in the impugned order are insufficient in as much as the contention that the respondent is a flight risk , ought to have been taken note, and the passport of the respondent, ought to have been directed to be deposited - having perused the conditions, it is opined that it would be appropriate for the petitioner to file an appropriate application in the High Court seeking incorporation of the said condition and if such application is filed, the same may be considered in accordance with law. Petition disposed off.

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• 2023 (7) TMI 920
  Seeking grant of Regular Bail - Scheduled offence - laundering of black money and political money - these companies are used as Shell Companies by politicians - It was held by High Court that Considering all these aspects of the matter including the duration of custody of the petitioner in the present case, as he is in jail custody since 18.08.2022, the court comes to a conclusion that he is entitled to be granted bail. HELD THAT:- There are no reason to interfere with the impugned judgment and hence, the special leave petition is dismissed.

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• Service Tax

• 2023 (7) TMI 919
  Sabka Vishwas (Legacy Dispute Resolution Scheme) 2019 - one more opportunity sought to enable it to make payment so as to give effect to the above objective of the Scheme to reduce the litigation - payment was made on 19th March 2020, but on account of technical glitch, the said payment was reversed by the Banking Authorities - HELD THAT:- Similar issue had come up before the Co-ordinate Bench of this Court in SHRI ARJUN AMARJEET RAMPAL VERSUS UNION OF INDIA AND ORS. [ 2023 (5) TMI 13 - BOMBAY HIGH COURT ] when this Court vide order dated 30th March 2023 after analysing the object of the Scheme, directed the Petitioner to pay the amount under SVLDR Scheme directed the Respondents to issue necessary Certificate as per SVLDR Scheme. Following the decision of the Co-ordinate Bench, the present Petitioner needs to succeed - The petition is allowed by the following order:- (a) Petitioner to make the payment of Rs. 3,87,303/- under the SVLDR Scheme within a period of four weeks from the date of uploading of the order. (b) Petitioner on having made the payment Respondents would issue the final certificate as per SVLDR Scheme within a period of two weeks from the date of communication of the payment having made.

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• 2023 (7) TMI 918
  Levy of penalty - providing internet service to customers through cable - service tax liability accepted - HELD THAT:- The issue is no longer res integra having been decided by the Tribunal in the case of M/S CITY CABLE OPERA VERSUS C.C.E CHANDIGARH [ 2020 (2) TMI 227 - CESTAT CHANDIGARH] where though the issue has been decided in favour of the Revenue, the appellant s contention on penalty need to be examined. Reliance placed in the case of COMMISSIONER OF CENTRAL EXCISE VERSUS M/S. PANNU PROPERTY DEALERS, LUDHIANA [ 2010 (7) TMI 255 - PUNJAB AND HARYANA HIGH COURT] where the Hon ble High Court did not categorically hold that the imposition of penalty under Section 76 and Section 78 separately is not mutually exclusive prior to 10.05.2008, Hon ble High Court has certainly held that the Appellate Authority was within its right to hold that the penalty is mutually exclusive and in the spirit of the amendment. While the amount involved in the above case was Rs.51,026/-, the amount involved in the instant case is about half that amount. Therefore, in deference to the jurisdictional High Court s order, the penalty under Section 76 and 78 can be seen to be mutually exclusive even before the amendment. In the facts and circumstances of the case and looking into the fast changes that were coming in the Service Tax law during the relevant period, it can be concluded that the appellant being a small operator had no wherewithal to keep track of the law and thus, the applicability of the Service Tax to him, more so looking into the fact that the main cable operator M/s SIFY had discharged Service Tax on the entire amount collected from the customers, there are reasons to believe that there were sufficient reasons for the appellant in not discharging the applicable Service Tax. Looking into the conduct of the appellants in depositing the tax with interest and 25% penalty the provisions of Section 80 are invited and the benefits of Section 80 can be extended to the appellants. The penalties imposed are not sustainable - Appeal allowed in part.

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• 2023 (7) TMI 917
  Discharge of Service tax liability - manpower recruitment or supply agency service - reverse charge mechanism - whether payment of 75% tax by the recipient of service, when the service provider (the appellant) was required to deposit 100% tax but paid only 25% tax could be treated as discharge of service tax liability by the appellant? - levy of penalty - HELD THAT:- The decision of the Karnataka High Court in M/S. ZYETA INTERIORS PVT. LTD. SHRI. AMIT PRAKASH, DIRECTOR OF M/S. ZYETA INTERIORS PVT. LTD, VERSUS THE VICE CHAIRMAN SETTLEMENT COMMISSION, CHENNAI, THE PRINCIPAL COMMISIONER OF GST AND CENTRAL EXCISE, BANGALORE [ 2021 (10) TMI 233 - KARNATAKA HIGH COURT ] emphasises that where the government received the entire amount of tax an assessee cannot be called upon to make payment even if it had deposited some portion of the tax dues and the remaining portion was deposited by the service provider. The Karnataka High Court also observed that once the tax liability has been discharged, regardless of the person who has discharged, an assessee cannot be asked to pay the tax again. In this view of the matter, when the entire tax due has been deposited in the account of the Central Government though not entirely by the appellant as a service provider but also by the service recipients, it will not be possible to sustain the demand - The penalties could also not, for this reason, be imposed upon the directors of the appellant. Appeal allowed.

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• Central Excise

• 2023 (7) TMI 916
  Method of Valuation - Manufacture - Packing / Repacking of goods and re-labeling - Receipt of the medicines duly duty paid from the manufacturers in a packed form mentioning therein the retail price - it is alleged that Tribunal have not considered the issue of legality or otherwise of the duty liability under Section 4 and have considered the duty liability only under Section 4A of the Excise Act - principles of natural justice - HELD THAT:- It is found that the issue of illegality of the duty liability under Section 4 of the Excise Act has not been addressed by the Tribunal and the High Court - The appellant is not making any grievance as regards the finding of the High Court regarding illegality of the demand of the duty liability under Section 4A to the extent of Rs.4,34,50,353/-. The appeal(s) before the Tribunal to the extent of the duty liability under Section 4 of the Excise Act stands restored - However, the impugned orders in relation to the duty liability under Section 4A stand confirmed - appeal allowed in part.

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• 2023 (7) TMI 915
  SVLDRS - Waiver of Interest u/s 11AB of the Central Excise Act, 1944 - excise duty on the surcharge component was discharged belatedly as it ought to have been remitted on monthly basis - HELD THAT:- It is undisputed that the petitioner has paid the entire excise duty under the Scheme for the Financial Years 2005-06 and 2006-07. The Central Government introduced Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 . The Scheme provides for waiver of interest subject to satisfying certain terms and conditions. In the light of the order passed by the Hon ble High Court of Madhya Pradesh, the Central Government has issued a Circular dated 6-10-2022 clarifying that in cases where the assessee has filed ST-3 return on or before 30-6-2019 and has paid the tax dues in full before filing the application, the declarant is eligible to avail the benefit of the scheme for waiver of interest. In the present case, the petitioner has paid the entire excise duty before 30-6-2019 and in the light of the said Scheme, the petitioner is entitled for waiver of interest. The impugned order passed by respondent No. 1 is not sustainable - Petition allowed.

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